The Secular Case for Abortion Restrictions

The Secular Case for Abortion Restrictions

by George W. Liebmann

The 45 years that have elapsed since Roe v. Wade have seen no diminution of the abortion controversy. Laurence Tribe, Roe’s only academic defender at the time of its rendition has assured us that it is “a clash of absolutes.” The absolutes are Justice Kennedy’s vision of ‘moral autonomy’ and free love embodied in the so-called ‘mystery passage’ in the Webster and Obergefell cases and an opposition composed of Evangelical, Catholic and Mormon fundamentalists celebrating the human potential of each fertilized egg.

The contestants have been led into increasingly absurd positions.

Mr. Justice Stevens and Professor Geoffrey Stone have denied that religious teachings can be legitimate sources of law, the frieze at the top of the Supreme Court Building to the contrary notwithstanding. No longer is the law to be viewed, in Justice Holmes’ words, as ‘the external deposit of our moral life,’; the declaration on page 1 of his Common Law that “the prevalent moral and political theories…have had a good deal more to do than the syllogism in determining the rules by which men shall be governed” is renounced, as are the teachings of chapter 2 of Cardozo’s Nature of the Judicial Process, with its reference to the “demands of religion or of ethics, or of the social sense of justice, whether formulated in creed or system, or immanent in the common mind.” The prudential reflection of the Catholic judge Lord Devlin in The Enforcement of Morals find no greater favor: “some men may do the right thing out of charity, but for the mass of men faith and hope are necessary also.” In this new cosmology, Jesus and Moses are out, and the secular philosophers John Rawls and Ronald Dworkin are in. But their peculiar blend or libertarianism and egalitarianism is subject to the objection of the learned comparative law scholar Max Rheinstein to Rawls’ first book: “it presupposes human beings that are more benevolent than God.”

It is not surprising that lack of moral realism has exacerbated inequalities in American society: the abortion rights movement has been a boon for America’s economic conservatives and their party, bidding fair to transform the country into a plutocracy. Even the late Marxist scholar Eric Hobsbawm was led to lament the diversion of political energies into sexual liberation at the expense of economic reform. The renunciation of religious teachings as guides to law also proves too much: the rules against murder and theft owe something to religious commandments, and Professor Crane Brinton reminded us in his History of Western Morals that the prohibition of infanticide was not present in Rome but was a product of Christian teachings. It, together with requirements of child support, with their ‘chilling effect’ on ‘reproductive freedom’ will be under pressure when the secularists, and their unfashionable allies, the eugenicists, have the upper hand.

The fundamentalist critique of the new rules likewise concedes little to either history or human frailty. At common law, the killing of a fetus before the point of ‘quickening’ was not a criminal offense. Similarly, there was nothing illegal about devices designed to prevent the implantation of a fertilized ovum in the walls of the uterus; millions of plumbing fixtures in common use on the European Continent attest to this fact. There were, to be sure, efforts, all virtually extinct by the 1940s, to prohibit the sale of devices designed to prevent the union of sperm and egg, even these would not have prevented the sale of the so-called ‘morning-after pill.’ The anti-abortion laws did not criminalize women; they were protections of traditional medical ethics; only a handful of women were ever prosecuted under them, and then as accessories before the fact, not as principals. First-term abortions were treated not as homicides but as minor felonies. Only third-term abortions of viable fetuses were deemed homicides; medical ethics entered into this, since it seemed unreasonable for doctors to struggle to deliver premature infants in one room, while slaughtering them in the next.

After half a century it is time to examine the practical effect of the imposition of rules which repudiated the moderate approach of the American Law Institute urged by Judge Learneed Hand on the ground that absolute rules would generate “controversies undreamed of by those who use this facile means to enforce their will.”

Few attempts to assess the practical effects of totally permissive rules have been made. The assumption has been that legalized abortion reduces the numbers of unplanned pregnancies and unwanted children; Justice Stevens once asserted that the only possible justification for restrictions was a pro-natalist one, out of place in an over-crowded world, proclaiming in the Webster case that “on a strict balancing of economic costs and benefits, the economic costs of unlimited childbearing would outweigh those of abortion.”.

But, in fact, the new rules have helped increase both the numbers of unwanted pregnancies and the numbers of births out of wedlock, as well as the prevalence of venereal disease. The immediate effect of permissive abortion, as the legal scholar John Hart Ely noted at the time, was to give young men a hunting license. No longer would young women reject sexual advances out of fear of pregnancy: ‘you can always get an abortion.’ Nor would young men abstain from unwanted or even forcible advances for fear of being rebuffed: the odds in their favor had greatly improved.. When I attended the 25th reunion of my sex-segregated Dartmouth class in 1985, the only political proposition that this assemblage of one-time male chauvinist pigs could almost unanimously agree on was that the court-decreed legalization of abortion was a good thing.

The new rules did not merely terminate some unwanted pregnancies; they had the more significant indirect effect of inducing more young women to put themselves at risk. They served as the backstop to the added confidence in female impregnability derived from the new birth control pills. The Nobel Prize economist George Akerlof and his wife Janet Yellen, an exemplary public servant in her later incarnation as chair of the Federal Reserve Board analysed this phenomenon in 1996, in two articles published in the Quarterly Journal of Economics (111 Q.J. Econ. 278 (1996) and the Brookings Review (September 1, 1996), pointing out that legalized abortion brought an end to the ‘shotgun marriage’ and any assumption of parental responsibilities by young men: “deal with it; get an abortion.” Where once 43% of unwanted pregnancies resulted in marriage, now the proportion is 9%. Yet many women, once pregnant, whether from maternal instinct, fear of loss of future ability to conceive, or social and economic pressure, do not resort to abortion. Far from reducing births out of wedlock, the new rules produced an explosion in them, especially among lower-income populations, confounding the desires of the birth-controllers and eugenicists. Where once in 1970 there were only 5.7% births out of wedlock in America’s white population, now 29% of its births are out of wedlock, as are 71% of those to Blacks (as against 38% in 1970). This consequence was invisible to upper-middle-class scribblers living in academic, corporate, or other insulated welfare states, but was vividly described by unfashionable writers like Charles Murray and T.D. Vance..

In writing of sexual licentiousness in the 18th century, Adam Smith, in one of the less-anthologized chapters of the Wealth of Nations,(Book V, Ch.I, Part III, Art.III) had observed:

“in every civilized society. . . there have always been two different schemes or systems of morality current at the same time. . . The vices of levity are always ruinous to the common people, and a single week’s thoughtlessness and dissipation is often sufficient to undo a poor workman for ever. . . The disorder and extravagance of several years, on the contrary, will not always ruin a man of fashion, and people of that rank are very apt to consider the power of indulging in some degree of excess as one of the advantages of their fortune. . . a man of low condition as soon as he comes into a great city, is sunk in obscurity and darkness. His conduct is observed and attended to by nobody, and he is therefore very likely to neglect it himself, and to abandon himself to every sort of low profligacy and vice.”

We now enjoy the effects of constitutional rules which encourage all citizens to think of themselves as ‘men of wealth and fashion.’ One consequence was the impoverishment of single mothers whose men are no longer required, in St. Augustine’s formulation, to “either marry or burn.” A second consequence was the imperfect socialization of large numbers of young men, one foreseen by Bertrand Russell in his Marriage and Morals of 1927, in which he forecast existential despair for purposeless young men whose women had ‘ married the State’
and received the benefit of new creches and subsidies. It is thus not surprising that more than half of white women with children, unlike their childless counterparts, voted for an unlikely champion in the person of Donald J. Trump (although it can be said for Trump that unlike many practitioners of serial matrimony, he has not abandoned his young).

Akerlof and Yellen in 1996 were pessimistic that anything could be done about the consequences of ‘the pill’ and freely available abortion, but recent experience with ‘welfare reform’ suggests they might be wrong. People are driven in their life decisions by fundamental fears, not by leaflets and the outpourings of either the mass media or Washington advocacy groups. When it was discovered after the 1996 law that pregnancy no longer conferred an automatic right to independence from one’s mother and 18 years of State payments, but rather a series of hassles involving work requirements and five-year time limits, the rate of pregnancies to unmarried teenagers sharply fell from 213 per thousand in 1990 to 65 per thousand in 2016.

Abortion policy in a number of continental European countries suggests that mandatory counseling requirements, absolute prohibitions of third-term abortions, and measures introducing elements of delay, uncertainty, public censure, and expense into the abortion process produce lower proportions of births out of wedlock. The French legislation sponsored by Simone Veil as Health Minister in a Conservative government in 1974 envisaged “information about the medical risks of terminating a pregnancy and the risks of premature births of future children. . . information about birth control. . . we have made an obligation on pain of administrative closure, for the establishments where abortions are performed. . . two interviews, together with a mandatory eight-day period for consideration, seemed necessary to make the woman understand that this is not a normal or banal act but a serious decision that cannot be undertaken without first fully considering all the consequences and which should be avoided at all costs.. . . we deemed it necessary to emphasize the seriousness of an act that must remain the exception even if, in some cases, it involves a financial cost to the women.” (S.Veil, A Life: A Memoir (London: Haus Publishing,2009), 260,263-64,266.

While these limitations were ultimately swept away by the modish Hollande government, ultimately decisively repudiated by the electorate, they provide an example for American policy.They persist in milder form in Germany, where only 16% of children are raised by single mothers, as against 26% in the United States.

The statistics discussed above are not as widely discussed as they should be. They establish that abortion on demand has not been a public policy success story in the United States. While the so-called ‘sexual revolution’ with its adverse consequences for women with children and for the children themselves, particularly the male children, was instigated by ‘the pill’ the tendency to throw caution to the winds was enormously reinforced by the perception of many if not most women that abortion was a readily available ‘backup’ Indeed, its role in this respect informs the rhetoric of the more recent Supreme Court decisions sustaining it as indispensable to broader female participation in the professional work force, the area of society familiar to judges and justices. Per Justice Blackmun, “millions of women have ordered their lives around the right to reproductive choice.”

But abortion on demand has played out very differently for less fortunate groups. Their lives have been dis-ordered by the changes in mores among both men and women that the new rules have fostered. The changes have feminized poverty for the non-college educated. Viewed in this light, the media defenders of the absolutism of Roe appear not as partisans of the Enlightenment but as practitioners of class warfare. Less fortunate women would almost certainly benefit from the changes in mores that would result from stricter rules.

Those favoring greater restrictions on the German and one-time French pattern thus cannot be dismissed as persons whose claims rest on religious superstition ; on what Justice Stevens called “official endorsement of a theological tenet.” The argument about abortion can no longer reasonably be conducted or characterized .. as a religious war between believers and nonbelievers. If the debate proceeds in the language of social science with discussion of social consequences, the media men and women ‘of wealth and fashion’ will appear as the proponents of superstition and their traditionalist opponents as the advocates of empiricism and social order.

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